Wilkerson v Wilkerson

[2013] NZHC 3558

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3187 [2013] NZHC 3558

IN THE MATTER             of an appeal pursuant to s 39 of the

Property (Relationships) Act 1976

BETWEEN  WILKERSON Appellant

ANDWILKERSON Respondent

On the papers

Counsel:                  J D Noble for Appellant

H K Patel for Respondent

Judgment:                20 December 2013

JUDGMENT OF GODDARD J AS TO COSTS

This judgment was delivered by me on 20 December 2013 at 3.30 pm, pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Boyle Mathieson, Auckland for Appellant

Patel Nand Legal, Auckland for Respondent

WILKERSON v WILKERSON [2013] NZHC 3558 [20 December 2013]

[1]      This is a costs decision in relation to an appeal against a decision of the

Family Court under the Property (Relationships) Act 1976 (the Act).1

[2]      The facts were as follows.   The appellant was married to Mr Wilkerson. They separated on 28 March 2009.   10 days later, Mr Wilkerson transferred relationship property in the form of shares to his nephew, Nathan Wilkerson (the respondent).  On his uncle’s instructions, Nathan Wilkerson sold the majority of the shares and transferred the proceeds to Mr Wilkerson’s daughter and granddaughter in Fiji.  Nathan Wilkerson said he paid Mr Wilkerson cash in exchange for ownership of the remaining shares.  Mr Wilkerson moved to Fiji and passed away in June 2013.

[3]      In January 2012, the appellant applied to the Family Court for an order under s 44 of the Act the nephew to pay her the sum of $44,987.18.  The Family Court Judge declined her application.   In relation to the first parcel of shares the Judge decided against exercising his discretion to make an order under s 44(2) in favour of the appellant.  In relation to the second parcel of shares, the Judge held that Nathan Wilkerson had paid cash in return for ownership of those shares (as opposed to receiving the shares as a volunteer).   Mrs Wilkerson challenged both findings on appeal.

[4]      I found in favour of Mrs Wilkerson on the first ground of appeal and made an order for Nathan Wilkerson to pay Mrs Wilkerson $35,757.93.  I upheld the Family Court Judge’s decision in relation to the second parcel of shares, which were worth approximately $7,500.  Counsel were given leave to file memoranda on costs within

21 days.

[5]      Mr Noble, for the appellant, applies for costs of either:

(a)       $4,904.19 (being all of the legal costs incurred by Mrs Wilkerson); or

(b)       $3,880.50 (being costs calculated on a 2A basis).

1      Wilkerson v Wilkerson [2013] NZHC 2930.

[6]      Mr Patel, for the respondent, says no costs should be awarded because the appellant only succeeded on one of the two grounds of appeal.

[7]      As the appellant was successful in her appeal she is entitled to costs.  The bulk of the appeal related to the larger parcel of shares and comparatively little time and argument was devoted to the second ground of the appeal.  The end result was a substantial order in favour of Mrs Wilkerson.

[8]      That  said,  I  do  not  see  why  the  appellant  should  receive  full  costs. Accordingly, I order that the respondent pay the appellant costs calculated on a 2A basis of $3,880.50.

Goddard J